Ahmed Abou-el-Wafa; Professor of General International Law, Faculty of Law, Cairo University.
First: General introduction
Islamic law (Sharī‘ah) has granted human rights significant attention, as an essential requisite for the continuation of human life in Islamic society, and elsewhere. In fact, some differences may exist between one religion and another, or one legal system and another, just as there are many aspects of agreement; given that each adopts a distinct direction.
Second: The fundamental premise in Islam is not to be bound by any international convention that conflicts with higher Islamic norms (Islamic jus cogens).
In fact, there are many established norms in Islamic law, which are accepted as inviolable (equivalent to what is currently known, in the jurisprudence of international law as ‘jus cogens’. The 1969CE Vienna Convention on the Law of Treaties stipulates that any treaty conflicting with ‘jus cogens’ is void; moreover, that a treaty lapses, if any peremptory norm conflicting with it appears even after it is ratified).
‘Jus cogens’ in Islam originates from two principal sources, namely:
· The Qur’ān and the Sunnah.
- or consensus (ijmā‘) that a particular issue may not, under any circumstances, be contravened.
No doubt that any peremptory norm in Islam has the necessary effect of negating being bound by any international treaty at variance with that norm.
It is enough for us to mention here the saying of the Prophet, peace and blessings upon him:
- “Any condition that is not stipulated in the Book of Allāh is invalid, even if it was a hundred conditions”.1
- “Reconciliation is allowed among the Muslims, except for reconciliation that makes the unlawful lawful, or the lawful unlawful”.2
That was why the Prophet, peace and blessings upon him, in the time of the Treaty of al-Ḥudaybiyah, said: “By Him who has my soul in His Hand, they (the non-Muslim Arabs) will not make me an offer that would glorify the sanctities of Allāh, except that I will accept it”.3
Accordingly, we can conclude, from the Islamic jurisprudence (fiqh) point of view, that the higher Islamic norms (jus cogens) are related to the Islamic public order.4
The above is affirmed and reinforced by the Islamic legal maxim: “Whatever is established by Islamic law takes precedence (in application) over what is established by condition”. If the object of the contract is stipulated as a condition, this does not affect it negatively or positively, because “the object of the contract is understood to exist by grant of the legislator, and not the condition”.5
The outcome of the foregoing is that, in Islam, the higher Islamic norms (jus cogens) are the rule and standard to judge the validity of any international treaty. Thus, the latter is amended according to the former (and not the other way around), or ruled to have lapsed if it contravened the former. Indeed, it is well established that for an action to be correct, “it must conform to Islamic law, in form and substance”6.
This is also confirmed in the Qur’ān: “So woe to those who write something down with their own hands and then claim, ‘This is from Allāh,’ in order to make some paltry gain. Woe to them for what their hands have written! Woe to them for what they have earned!” (Sūrat al-Baqarah 79). Imām Al-Qurṭubī writes: “In this verse… there is warning against substitution, change and addition in Islamic law; so, anyone, who substitutes, alters, or innovates in the religion of Allāh, by introducing things that are alien to it and not permitted by it, is included in this stern admonition”.7
Third: The 1979CE Convention on the Elimination of All Forms of Discrimination against Women:
Here we point to Islam's attention to women’s rights, and subsequently, Islam's position on the 1979CE Convention.
(A) Islam's attention to the rights of women:
It is well known that the legal state of women – prior to the advent of Islam - was dire: Roman law considered her a mere object. She lacked legal capacity or independent identity. Likewise, the woman, prior to Islam, was a “dishonour” to her family, and men had to get rid of females by burying them alive at birth (female infanticide). The Qur’ān recounts: “When one of them is given the good news of a baby girl, his face darkens and he is furious. In his shame, he hides away from people because of the evil of the good news he has been given. Should he keep her and suffer contempt, or bury her in the earth? What an evil judgement they make!” (al-Naḥl: 58-59).
Further, Allāh says: “when the baby girl buried alive is asked for what sin was, she was killed” (Sūrat al-Takwīr 8-9); also: “Do not kill your children for fear of poverty. We shall provide for them and for you; indeed, killing them is a terrible mistake” (Sūrat al-Isrā’ 31).
Therefore, it was natural that Islam would not deny women their rights, rather it acted to achieve parity between men and women. This is borne out in many verses of the Qur’ān, including:
- “Anyone who acts rightly, male or female, being a believer, We (Allāh) shall grant them a good life, and reward them according to the best of their deeds” (Sūrat al-Naḥl 97).
- “Anyone, male or female, who does good deeds and is a believer, will enter Paradise and will not be wronged by as much as the tiniest speck” (Sūrat al-Nisā’ 124).
- “… men have the portion they have earned; and women the portion they have earned…” (Sūrat al-Nisā’ 32).
- “A woman and a man who commit fornication: flog both of them one hundred lashes…” (Sūrat al-Nūr 2).
- “Cut off the hands of thieves, whether they are man or woman, as punishment for what they have done– a deterrent from Allāh…” (Sūrat al-Mā’idah 38).
- “Their Lord responded to them: ‘I will not let the deeds of any doer among you to go to waste, male or female; you are both the same in that respect…” (Sūrat Āl-‘Imrān 195).
- “Mankind, We (Allāh) have created you all from a male and female, and made you into peoples and tribes so that you should become acquainted with each other...” (Sūrat al-Ḥujurāt 13).
- “O’ Prophet, when believing women come and pledge to you that they will not ascribe any partner to Allāh, nor steal, nor commit adultery, nor kill their children, nor lie about who has fathered their children, nor disobey you in any righteous thing, then accept their pledge and pray to Allāh to forgive them: Allāh is Ever-Forgiving, Most Merciful” (Sūrat al-Mumtaḥanah 12).
- The woman is owed the same as is required from her. This is summarised by the Qur’ān: “Women have [rights] similar to their [obligations] to be honoured with fairness, but men have a degree [of right] over them…” (Sūrat al-Baqarah 228). This noble verse sets forth the interrelationship between the rights and the obligations of the woman, in equal measure and without excess or negligence.
- Are there finer words than Allāh, the Almighty, saying: “And among His signs is that He created spouses from among yourselves for you to live with in tranquillity: And He ordained affection and compassion between you....” (Sūrat al-Rūm 21).
In Islam, women are deemed “sui juris” to enjoy full legal capacity and personality. A woman has the right to manage her own finances, and bring legal action before the courts. Her legal personality is independent of her husband, and she is responsible in Islamic law for her actions; as: “All of you are guardians, and all of you are responsible for your subjects…”.8
In Western legal systems, this was the exact opposite9. French women never enjoyed their independent personality prior to the 1965CE amendment (the 13 July 1965CE law), which stipulated under Article 216 of the Civil Code, that: “Chaque époux a la pleine capacité de droit”, that is: “Each spouse has the full legal capacity”.
Prior to that, however, the French wife was no more than a shadow of her husband. It is enough that she was not able to conclude an undertaking without her husband’s special permission. In short, the husband was everything in the family.
From the beginning, Islam recognised the full separation between a woman’s finances and her husband’s, and that each had independent financial responsibility. This was also recently acknowledged in Article 1536 of the French Civil Code. HRH Prince Charles, The Prince of Wales, delivered a speech at the Oxford Centre for Islamic Studies, Oxford University, in which he said:10
“Another obvious Western prejudice is to judge the position of women in Islamic society by the extreme cases… The rights of Muslim women to property and inheritance, and to some protection if divorced, and to the conducting of business, were rights prescribed by the Qur'an 1,400 years ago... In Britain at least, some of these rights were novel even to my grandmother's generation!
“… Women are not automatically second-class citizens, because they live in Islamic countries…”.
Indeed, Islam’s holds the woman in higher regard than the man. In the renowned tradition, the Messenger, peace and blessings upon him, was asked: Who is more entitled to be treated with the best companionship by me? He said: “Your mother”. It was said: Who next? He said: “Your mother”. It was said: Who next? He said: “Your mother”. It was said: Who next? He said: “Your father”11 . He (peace and blessings upon him) mentioned the mother three times, and the father only once.
Perhaps, what we have cited above proves that the status of women in Islam in no way falls short of what modern societies have granted them; rather, it is greater in some aspects12.
In this respect, Article 6 of the Cairo Declaration of Human Rights in Islam, which was adopted by the 19th Islamic Conference of the Foreign Ministers of the Organisation of Islamic Conference (Cairo 1411AH/1990CE), stated that:
(A) A woman is equal to a man in human dignity, and she possesses rights as much as she has duties. She has her own civil personality, independent financial status, and the right to retain her name and lineage.
(B) The man bears the burden of spending on the family, and is responsible for its care.
In reality, Islam considers that women have four duties to deliver: a duty to care and cater for the home: “… The woman is a guardian over her husband’s house and she is responsible for those in it…”13; a duty of worship: “And stay at home, and do not flaunt your finery as they used to in the pagan past; establish the prayer (ṣalāh), give the prescribed alms (zakāh), and obey Allāh and His Messenger…” (Sūrat al-Aḥzāb 33); a knowledge duty based on: “remember what is recited in your houses of Allāh’s revelation and wisdom” (Sūrat al-Aḥzāb 34); and a duty to direct female society: “The believers, both men and women, support each other; they command what is right and forbid what is wrong”14 (Sūrat al-Tawbah 71).
(B) Islam’s position on the 1979CE Convention on the Elimination of All Forms of Discrimination Against Women.
On 18 December 1979CE, the United Nations General Assembly adopted the Convention to End all Forms of Discrimination against Women. Libya, however, expressed reservations on the Convention saying: this adoption must not contradict personal status laws as stipulated by Islamic law. Many Islamic countries also expressed reservations on some provisions in the Convention, such as Egypt15 , Iraq, Bangladesh, Bahrain and Saudi Arabia, on the basis that they must not conflict with Islamic law. Some other countries 16, such as Denmark, Finland, Germany and Norway objected to those reservations, claiming that a state should not cite its own national law to justify non-compliance with an international convention. Suffice here to mention Denmark’s objection to Libya, saying that: “Libya cannot plead its own national laws as an excuse for not endorsing an international convention”. Norway also objected in a similar manner.
The truth is these objections are unfounded17 , for the following reasons:
1- Muslim countries have the right to raise reservations to some provision of the convention, out of respect for Islamic law.
2- Many states have expressed reservations on the provisions of the convention, including Australia, Austria, Belgium, Brazil, Bulgaria, France, Germany, and Israel, based on their internal laws or religion18:
- Belgium, for example, decided that applying Article 7 must not impair Article 69 of the Belgian constitution, which limits royal power to men only, or Article 58, which reserves to the King’s sons the power to take up positions in the House of Lords by the power of law from the age of 18, and the right to vote from the age of 25.
- Israel had reservations on Article 7 (B) to appoint women as judges in religious courts, because it is prohibited by the laws governing Jewish sects in Israel. Apart from that, the said Article applies to any practice by women in public life.
- Israel also had reservations on Article 16, to the effect that the personal status laws binding on the different religious sects in Israel did clash with the Article 19.
3 - The Islamic countries are not obliged to adopt the said Convention. If they were to do so, then they would be more entitled to adopt the Convention with reservations, applying the maxim: “He who owns most, also owns less” or “the part is also included in the whole”. This is expressed by the rule: “In toto est pars continetur, Qui peut le plus peut le moins, He who can do more can do less”.
4 - Regarding other international conventions regulating women’s rights, such as the Convention on Political Rights of Women, concluded in New York on 31 March 1953CE, some countries expressed reservations20. The same was true for the Convention on the Nationality of Married Women, concluded in New York on 20 February 1957CE21. Why then are objections raised when Muslim countries express reservations citing Islamic law as obliging such reservations?
5 - Those who objected to the legitimate reservations of the Islamic countries, out of respect for the norms of Islamic law, stood as spectators before the rape of Muslim women in Bosnia and Herzegovina, and did nothing to stop the atrocities. A team of experts from the European Community estimated that the Serbs raped 20,000 Muslim women within the campaign of ethnic cleansing during the war that erupted following the collapse of the Yugoslav Union22.
6 - The Convention aims to achieve an extremely serious matter, stating that: “… a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality of men and women”. There is no doubt that “this embodies a trespass on the nature of both men and women, and the many characteristics, and physical and psychological functions that have been firmly established within their contrasting natures, even if they are equal in humanity”23.
7 - As previously pointed out, Islamic law granted women high status and full and unimpaired capacity; indeed, Islamic law decided that this ruling held true for non-Muslim women as well.
This is what Imām Aḥmad b. Ḥanbal said regarding taking Jewish or Christian wives alongside a Muslim one: “The free Jewish and Christian wife, in my view, has the same rights of the share of the husband’s time, and maintenance as the Muslim one”. Therefore, he must act with justice towards them: spending one day with the Muslim wife, and another day with the Jewish or the Christian wife24.
We can, therefore, say with complete confidence that Islam has elevated the status of women and safeguarded their rights25.
It is clear from the foregoing that Islamic law is in agreement with the vast majority of international conventions and agreements, and that in those few instances, where it conflicts with these conventions and agreements, Islamic countries have the right to refuse adopting them, by placing reservations on them, issuing interpretative statements regarding their application, or declaring non-adoption in the first place.
There are two reasons for this:
1. The rules of “public order” have precedence, in application, in the legal systems of states, and this applies to Islamic countries.
2. The reservations system is well-established in international treaty law.
However, we noted that many non-Muslim countries have objected to these reservations and interpretative statements, based on two basic arguments:
First: The general nature of the reservation, which casts - in the eyes of these countries - doubt over those Muslim countries will to fulfil their obligations as required by treaty, which undermines the basis of international treaty law.
In reality, this argument can be refuted to in two ways:
- The first: The purpose of generalising a reservation is to dismantle any association with a treaty that contradicts Islamic law in the first place. This is because if a Muslim state adopted a treaty on which it had expressed ‘specific’ rather than ‘general’ reservations, then what if after implementation, it transpires that provisions in the agreement contradict Islamic law? It follows that this Muslim state would be forced to discontinue applying the agreement. No doubt this matter is even more serious than expressing a ‘general reservation’; as indeed, it conflicts with the notion of ‘legal security’ that must be considered in any treaty relationship.
- The second is that: upon application, the reservation's ‘generality’ will become specific when the agreement or international document is applied to practical cases falling within its scope of application.
Second: Muslim countries must not rely on their internal laws to justify these reservations, and that these laws must be amended in order to be in line with international agreements and conventions relating to family.
This argument is also unacceptable, because non-Muslim countries do not take into consideration the self-evident truth that Muslim countries have no power to amend Islamic law; rather, they can only amend international laws, conventions and agreements that conflict with it.
Thus, non-Muslim countries must recognise that ‘contrasts’ between religions, civilisations, and cultures is something that must be respected26.
This article is part of the book; The Objectives of Sharīʿah and the International Conventions, translated into English and will be published soon by the Foundation;
Ahmed Abou-el-Wafa, Islamic Law Objectives (Maqāṣid) and the Population Conferences: Analysing Islam’s position on the 1979CE Convention on the Elimination of All Forms of Discrimination against Women, Al-Furqān Islamic Heritage Foundation, London, UK.
Please note that some of the images used in this online version of this article might not be part of the published version of this article within the respective book